Firms weigh random testing

Duncan Marsden, head of the employment group with Borden Ladner Gervais, is pictured in the Calgary offices.Photo by
Ted Rhodes

Two rulings within the past 10 months barring companies from conducting random drug and alcohol testing for their workers in safety-sensitive workplaces could put a broader chill in the air when it comes to such tests, according to one legal expert.

"Companies are going to be more reluctant to implement random (testing) policies in general," says Duncan Marsden, head of the labour and employment group at Borden Ladner Gervais LLP's Calgary office. "I suspect employers will look to more sophisticated tests."

Suncor is applying for a judicial review of that ruling, which involved 3,600 of its unionized workers in the Fort McMurray region.

Last June, Irving Pulp and Paper Ltd. in New Brunswick also had its random testing policy struck down by the Supreme Court of Canada, which upheld a previous ruling by a labour arbitration board in that case in favour of its unionized workers.

"Other companies have to be more cautious when implementing a random (testing) policy in light of this (Suncor) decision and the Supreme Court of Canada decision," added Marsden. In the most recent decision, the arbitration board appeared to raise more questions than answers around the whole topic of random drug and alcohol testing in the workplace.

In its ruling, the board found: "While there is no question that alcohol and drugs do not belong in a dangerous workplace, this begs - rather than answers - what measures an employer is entitled to take to address such use."

Robyn Ainsworth, owner of Calgary-based Dynamic Testing Solutions Ltd. which provides drug and alcohol testing services to a wide range of companies, said great care must be taken any time a firm decides to implement such testing.

It must include consent by the employee and can only be done in safety-sensitive occupations or where a widespread problem has been clearly identified.

Companies can also legally test workers that appear to show impaired behaviour, slurred speech or smell like alcohol.

They can also conduct tests where an employee suffers an accident or a near miss.

"There are certain positions that it's not appropriate for," Ainsworth says. "A lot of companies put a lot of thought and care into setting up that program and how they administer it."

Employers are left in the tenuous position of trying to balance workers' rights to privacy and human dignity with co-workers' rights to have the safest work environment possible, she said. Under current labour laws, companies are also required to offer some form of rehabilitation or addiction assistance "without undue harm" to the company.

They must also take measures to ensure the position remains available to anybody suffering from a substance abuse problem upon their return to work.

Random testing policies usually involve "invasive" testing that can cause decreased morale due to the "stigma and humiliation" that some workers associate with providing bodily fluids on demand, according to Marsden.

"People have strong feelings about this and tend to swing one way or the other," he added.

"There are significant privacy rights that are potentially invaded. On the other hand, you have the very compelling argument that safety comes first. One death is too many."

Ainsworth added, however, that she senses drug and alcohol problems are generally becoming more pervasive and says it's "extremely important" that companies are able to find ways to mitigate that risk.

"It's starting to fall within a huge group of companies," she says.

Going forward, Marsden said companies will have to do a better and more thorough job of making a strong case to implement random testing policies in the workplace.

He is also sympathetic to the need for such policies.

"I think it (the Suncor ruling) is a decision where lots of people can see both sides of the argument," he said.

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